Gibbons Law Alert

Gibbons Law Alert

Tagged: Retaliation

Pay Equity Compliance Front and Center in New Jersey Department of Labor’s Proposed Regulations for the Temporary Workers Bill of Rights

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Posted in Employee Benefits

On August 31, 2023

The New Jersey Department of Labor recently issued proposed regulations for the Temporary Workers Bill of Rights (TWBR). The proposed regulations include new definitions and further guidance for employers to comply with TWBR’s pay equity requirements. The proposed regulations are open for public comment until October 20, 2023. By way of background, the TWBR, which became fully effective on August 5, 2023, seeks to protect more than 127,000 temporary workers working in the state and employed through a temporary help service firm in designated occupations, including protective services; food preparation and serving; building and grounds cleaning and maintenance; personal service and care; construction labor, helpers, and trades; installation, maintenance, and repair; production; and transportation and material moving. The TWBR, among other things, implements detailed wage notice requirements to be provided to temporary workers in both English and the temporary worker’s primary language, recordkeeping requirements, advanced notice for changes to temporary worker schedules, pay equity, and anti-retaliation rights with a rebuttable presumption for any disciplinary action taken within 90 days of a temporary worker’s exercise of those rights. The goal of the TWBR is to strengthen employment protections for temporary workers in these designated occupations, and employers need to be mindful of the TWBR’s requirements for compliance purposes. The TWBR’s pay equity component requires temporary workers...

The New Jersey Appellate Division Expands Hostile Environment Liability Under the LAD

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Posted in Discrimination

On June 14, 2022

On June 2, 2022, in Morris v. Rutgers-Newark University, the New Jersey Appellate Division decided, in a case of first impression, the extent to which a plaintiff alleging harassment in violation of the New Jersey Law Against Discrimination (“the LAD”) can use acts of harassment against others to establish the existence of a hostile environment. The case involved claims brought by members of the women’s basketball team of Rutgers-Newark University (“the University”), who were subjected to a hostile educational environment by the Interim Head Coach of the team. Although the case involved allegations of a hostile educational environment, the court’s decision is likely to be viewed equally applicable to hostile work environment claims and thus is one employers should be aware of. Background The plaintiffs included five players and the team manager for the University’s women’s basketball team for the 2014-2015 season, five of whom identified themselves as Black or African American while one identified as Hispanic. Four of the plaintiffs identified themselves as either lesbian, gay, or bisexual. In addition to the University, the defendants included the team’s Interim Head Coach for that season, the University’s Athletic Director, and the University’s Associate Provost. The plaintiffs brought suit in the Law Division of the Superior Court under the LAD alleging they were the victims of...

UPDATE: Mandatory Nondiscrimination Policies, Training and Reporting: Proposed New Jersey Legislation Would Impose New Obligations on Employers and Lengthen the Limitations Period

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Posted in Discrimination / Policies and Handbooks

On February 24, 2020

On February 18, 2020, Governor Phil Murphy continued his quest to enhance employee protections in New Jersey by announcing proposed legislation aimed at strengthening New Jersey’s already-expansive prohibitions against harassment and discrimination in the New Jersey Law Against Discrimination (NJLAD). According to the proposed legislative findings, the bill was designed to “reject the norms of yesterday that overlooked workplace harassment and discrimination as business as usual.” The proposed legislation comes on the heels of a report released by the New Jersey Division on Civil Rights (DCR) this month, Preventing and Eliminating Sexual Harassment in New Jersey, the result of a trio of public hearings held in September 2019. Employers are already scrambling to keep up with legislation directed at protecting call center employees, cracking down on misclassification, and expanding the rights of employees affected by a mass layoff or plant closing. Here are the highlights from the proposed legislation: Expanded Definition of Employee. Domestic workers and unpaid interns would be added to the definition of “employees” under the NJLAD and there are specific provisions governing domestic workers. Extended Time for Filing Claims. The current two-year statute of limitations applicable to claims brought under the NJLAD would be extended to three years. And, the time to file a complaint with the DCR would be extended from...

Governor Murphy Signs Bill Making Nondisclosure Provisions Unenforceable and Against Public Policy

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Posted in Discrimination / Employment Agreements / Restrictive Covenants

On March 19, 2019

On Monday, March 18, 2019, Governor Phil Murphy signed Senate Bill No. 121, which makes nondisclosure provisions in employment contracts or settlement agreements that are intended to conceal the details of claims of discrimination, retaliation, or harassment unenforceable and against public policy in New Jersey. Section 1 of the new law warns that a “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment” is against public policy and unenforceable.” The law does not define “employment contract” and leaves open to interpretation whether it applies to all agreements between employer and employee, whether an employment agreement, a separation agreement, or a settlement agreement. The prohibition on waiving any procedural right would make arbitration agreements, which by their nature waive the right to a jury trial, also invalid and unenforceable in contravention of the Federal Arbitration Act and recent United States Supreme Court precedent. An immediate challenge to this aspect of the law is likely since it casts doubt on all arbitration agreements between an employer and employee that seek to include claims of discrimination, harassment, and retaliation. Section 1 also prohibits a prospective waiver of any right or remedy under the New Jersey Law Against Discrimination (NJLAD) or any other statute or...

Governor Murphy Signs New Jersey Paid Sick Leave Law

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Posted in Employee Benefits

On May 4, 2018

On May 2, 2018, Governor Murphy signed the comprehensive paid sick leave bill passed by the New Jersey Legislature in April. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. For questions regarding this bill, or paid sick leave laws generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

New Jersey Senate Labor Committee Amends Bill Prohibiting Use of Nondisclosure Provisions in Employment and Settlement Agreements

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Posted in Discrimination / Employment Agreements

On April 20, 2018

In response to the recent spotlight on sexual abuse and harassment claims in the workplace and the #MeToo movement, the federal government and numerous states, including New Jersey, have focused attention on the use of nondisclosure provisions in settlement agreements involving claims of sexual harassment and assault. As we previously reported, the Tax Cuts and Job Bills Act was passed in December 2017 and includes a provision that bars any settlement or payment related to claims of sexual harassment or sexual abuse from being deducted as a business expense if the payments are subject to a nondisclosure agreement. While the federal tax bill aims to discourage the use of nondisclosure agreements, the proposed New Jersey legislation initially provided an outright ban on such agreements. At the time of its first introduction during the prior legislative session in December 2017, Senator Loretta Weinberg’s proposed bill prohibited New Jersey employers from including “a provision in any employment contract or agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.” The bill is unique because it is not limited to sexual harassment or abuse claims, but rather would apply to any type of discrimination, retaliation, or harassment claim under New Jersey’s Law Against Discrimination. Senator Weinberg’s bill was reintroduced...

NJ Legislature Passes Paid Sick Leave Bill

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Posted in Employee Benefits

On April 13, 2018

On the heels of sweeping pay equity legislation, the New Jersey Legislature has passed a comprehensive paid sick leave bill that, if signed, will require employers to provide employees with paid time off for a variety of purposes. For What Purpose Can Leave Be Taken? Employees can use paid sick leave for the following purposes: diagnosis, care, treatment, or recovery related to the employee’s illness; to care for a family member during diagnosis, care, treatment, or recovery related to a family member’s illness; for certain absences resulting from the employee or a family member being a victim of domestic or sexual violence; for time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, in connection with a public health emergency or a determination that the presence of the employee or child in the community would jeopardize the health of others; or to attend school-related conferences, meetings, or events, or to attend other meetings regarding care for the employee’s child. Paid time off used for these purposes must be paid at the same rate of pay with the same benefits as the employee normally earns. How Much Leave Must Be Provided? Employees will be entitled...

EEOC Issues New Enforcement Guidance on Retaliation

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Posted in Discrimination

On September 1, 2016

According to the Equal Employment Opportunity Commission (“EEOC”), retaliation has become the most frequently alleged basis of discrimination of all charges received by the EEOC. In light of this, and after allowing for public comment on the EEOC’s proposed enforcement guidance issued earlier this year, on August 29, 2016, the EEOC issued its new Enforcement Guidance on Retaliation and Related Issues. This replaces the EEOC’s Compliance Manual Section 8: Retaliation, which was issued in 1998. The enforcement guidance sets forth the EEOC’s position on retaliation and addresses retaliation under each of the statutes enforced by the EEOC by providing a number of illustrative examples. Helpful to employers, the enforcement guidance concludes by providing employers “promising practices” to reduce the risk of violations. A general outline of the enforcement guidance follows.

NLRB Ruling is Problematic for Employer Workplace Investigation Policies

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Posted in Labor

On October 26, 2015

The National Labor Relations Board (“NLRB”) decided that an employer’s workplace investigations policy, which recommends employees keep an internal investigation confidential, violated the National Labor Relations Act (“NLRA”) because it interfered with employees’ rights to communicate regarding matters affecting terms and conditions of employment. The ruling creates a quandary for employers to maintain effective workplace investigation policies and practices including confidentiality statements in anti-harassment policies.

New Jersey Appellate Division Decision Stresses Importance of Meaningful Anti-Harassment Policy and Training

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Posted in Discrimination / Policies and Handbooks

On November 3, 2014

An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for allegations of sexual, racial, or other harassment under New Jersey law. The New Jersey Appellate Division in Dunkley v. S. Coraluzzo Petroleum Transporters recently reinforced this fact, and the decision provides a helpful reminder to employers that adopting clear anti-harassment policies, providing regular training to its workforce, and immediately addressing allegations of harassment/discrimination once presented, are important factors that may help them avoid liability for the conduct of employees who violate such policies.

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